Indian Act (R.S.C., 1985, c. I-5)

Act current to 2017-12-11 and last amended on 2015-04-02. Previous Versions

Marginal note:Surrender to Her Majesty
  •  (1) A band may absolutely surrender to Her Majesty, conditionally or unconditionally, all of the rights and interests of the band and its members in all or part of a reserve.

  • Marginal note:Designation

    (2) A band may, conditionally or unconditionally, designate, by way of a surrender to Her Majesty that is not absolute, any right or interest of the band and its members in all or part of a reserve, for the purpose of its being leased or a right or interest therein being granted.

  • R.S., 1985, c. I-5, s. 38;
  • R.S., 1985, c. 17 (4th Supp.), s. 2.
Marginal note:Conditions — surrender
  •  (1) An absolute surrender is void unless

    • (a) it is made to Her Majesty;

    • (b) it is assented to by a majority of the electors of the band

      • (i) at a general meeting of the band called by the council of the band,

      • (ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender, or

      • (iii) by a referendum as provided in the regulations; and

    • (c) it is accepted by the Governor in Council.

  • Marginal note:Minister may call meeting or referendum

    (2) If a majority of the electors of a band did not vote at a meeting or referendum called under subsection (1), the Minister may, if the proposed absolute surrender was assented to by a majority of the electors who did vote, call another meeting by giving 30 days’ notice of that other meeting or another referendum as provided in the regulations.

  • Marginal note:Assent of band

    (3) If a meeting or referendum is called under subsection (2) and the proposed absolute surrender is assented to at the meeting or referendum by a majority of the electors voting, the surrender is deemed, for the purposes of this section, to have been assented to by a majority of the electors of the band.

  • Marginal note:Secret ballot

    (4) The Minister may, at the request of the council of the band or whenever he considers it advisable, order that a vote at any meeting under this section shall be by secret ballot.

  • Marginal note:Officials required

    (5) Every meeting under this section shall be held in the presence of the superintendent or some other officer of the Department designated by the Minister.

  • R.S., 1985, c. I-5, s. 39;
  • R.S., 1985, c. 17 (4th Supp.), s. 3;
  • 2012, c. 31, s. 207.
Marginal note:Conditions — designation

 A designation is valid if it is made to Her Majesty, is assented to by a majority of the electors of the band voting at a referendum held in accordance with the regulations, is recommended to the Minister by the council of the band and is accepted by the Minister.

  • 2012, c. 31, s. 208.
Marginal note:Certification — surrender

 A proposed absolute surrender that is assented to by the band in accordance with section 39 shall be certified on oath by the superintendent or other officer who attended the meeting and by the chief or a member of the council of the band and then submitted to the Governor in Council for acceptance or refusal.

  • R.S., 1985, c. I-5, s. 40;
  • R.S., 1985, c. 17 (4th Supp.), s. 4;
  • 2012, c. 31, s. 208.
Marginal note:Certification — designation
  •  (1) A proposed designation that is assented to in accordance with section 39.1 shall be certified on oath by an officer of the Department and by the chief or a member of the council of the band.

  • Marginal note:Ministerial decision

    (2) On the recommendation of the council of the band, the proposed designation shall be submitted to the Minister who may accept or reject it.

  • 2012, c. 31, s. 208.
Marginal note:Effect of surrenders and designations

 An absolute surrender or a designation shall be deemed to confer all rights that are necessary to enable Her Majesty to carry out the terms of the surrender or designation.

  • R.S., 1985, c. I-5, s. 41;
  • R.S., 1985, c. 17 (4th Supp.), s. 4.

Descent of Property

Marginal note:Powers of Minister with respect to property of deceased Indians
  •  (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.

  • Marginal note:Regulations

    (2) The Governor in Council may make regulations providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.

  • Marginal note:Application of regulations

    (3) Regulations made under subsection (2) may be made applicable to estates of Indians who died before, on or after September 4, 1951.

  • R.S., c. I-6, s. 42.
Marginal note:Particular powers

 Without restricting the generality of section 42, the Minister may

  • (a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;

  • (b) authorize executors to carry out the terms of the wills of deceased Indians;

  • (c) authorize administrators to administer the property of Indians who die intestate;

  • (d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and

  • (e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.

  • R.S., c. I-6, s. 43.
Marginal note:Courts may exercise jurisdiction with consent of Minister
  •  (1) The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.

  • Marginal note:Minister may refer a matter to the court

    (2) The Minister may direct in any particular case that an application for the grant of probate of the will or letters of administration of a deceased shall be made to the court that would have jurisdiction if the deceased were not an Indian, and the Minister may refer to that court any question arising out of any will or the administration of any estate.

  • Marginal note:Orders relating to lands

    (3) A court that is exercising any jurisdiction or authority under this section shall not without the consent in writing of the Minister enforce any order relating to real property on a reserve.

  • R.S., c. I-6, s. 44.

Wills

Marginal note:Indians may make wills
  •  (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.

  • Marginal note:Form of will

    (2) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.

  • Marginal note:Probate

    (3) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.

  • R.S., c. I-6, s. 45.
Marginal note:Minister may declare will void
  •  (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that

    • (a) the will was executed under duress or undue influence;

    • (b) the testator at the time of execution of the will lacked testamentary capacity;

    • (c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;

    • (d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;

    • (e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or

    • (f) the terms of the will are against the public interest.

  • Marginal note:Where will declared void

    (2) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.

  • R.S., c. I-6, s. 46.
 
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